My name is Peter G. Fetros, I represent the appellant in this case, Mr. Enrique Perez.

In this case, there was a four-count indictment -- four-count complaint filed against my client concerning three different instances.

Two of -- the first two counts of the indictment at the trial, the defendant took the stand and testify upon.

On the third and fourth count which involved one incident which was separate from the first two, the defendant did not make any statement on the stand and upon being cross-examined or attempted to be cross-examined by the District Attorney, his defense attorney raised an objection which was sustained by the trial court.

Thereafter, there was no further attempt to cross-examine the defendant on a separate instant the third and fourth counts.

In addition to these three instances, which were involved in the case, there was a collateral crime which was brought into the case on the grounds that it was a similar modus operandi.

The Court allowed the collateral crime to come in but here again there was no cross-examination to the defendant when he was on the witness stand.

During closing arguments since Griffin had not been decided by this Court, the prosecutor made comment on the fact that the defendant did not testify as to counts three and four nor was he able to cross-examine him concerning counts three and four because the judge had told him that he was not able to cross-examine the defendant.

Then, the instruction was given which is the same instruction which is contained in the Griffin case and we have before us now a clear case to determine the scope of the waiver of the privilege of self-incrimination when a person takes to stand in a multi-count indictment.

Now, we have an unusual situation here in one respect that the trial court determined the District Attorney could not cross-examine on counts three and four.

The Supreme Court of the State of California said this was in error that the counts three and four formulated a common plan and design and therefore cross-examination under the California statute was permissible.

It then went on to say that due to the federal decisions which had been rendered in federal cases concerning the scope of the waiver of the privilege that the privilege extended to all that which encompass legitimate cross-examination.

And the Supreme Court of California therefore held that the man when he took the stand waived his right to self-incrimination as to counts three and four could've been examined by them and could not now complain.

And I say that this is wrong for three reasons and actually for four.

First, the crimes three and four were not specific -- were not a common plan in design by any stretch of the imagination although the Supreme Court held that in that case.

Case which came later now says that the Perez case which is the one on appeal here is to be very limited in scope when determining what is modus operandi.

The crimes which are charged involved holdups of grocery stores and taverns.

The collateral crime which was brought in was another holdup of a tavern.

The timings of the holdups were different.

There were holdups in the 7 o'clock area.

There were holdups in the 1:30 area.

The number of people involved were different.

The weapons that were used were different ranging from sort of rifles to pistols.

The descriptions of the people who supposedly committed the crimes were different.

Therefore, I say that there was not this common plan or design and a cross-examine -- what cross-examination was not permissible at state court level.

But even if there was a common plan and design in the specific case as other cases have ruled if examination for evidence is admissible for a particular purpose, its probative effect may be outweighed by the amount of prejudice which can be laid in against the defendant.

Now, on these multi-count complaints, the man is on trial for each separate crime that he has charged with.

He can be punished each separately.

He has to -- the District Attorney has to prove each crime separately.

Therefore, when a question is asked in cross-examination concerning one of the other two crimes we have the direct situation where the man is -- they're being asked to testify against himself on those particular accounts.

Justice Potter Stewart: Mr. Fetros, --

Mr. Peter G. Fetros: Yes.

Justice Potter Stewart: There is a statement in your brief that is not quite clear to me on page 6.

You're talking about the sentence that was imposed upon your client to say that the counts one and two to run consecutively and counts three and four concurrently.

Now, does that mean the three and four were consecutive to one and two but concurrently with each other or does it mean that they were concurrently with counts one and two?

Mr. Peter G. Fetros: Concurrently with counts one and two.

Justice Potter Stewart: So that --

Mr. Peter G. Fetros: No, his maximum sentence therefore would be at the exploration of count of two.

Justice Potter Stewart: Of count two --

Mr. Peter G. Fetros: That's correct.

Justice Potter Stewart: -- counts three and four where the sentence is imposed were fully concurrent with the consecutive sentences imposed upon counts one and two?

Mr. Peter G. Fetros: That's correct and of course in California we have the indeterminate sentence.

Justice Potter Stewart: Yes.

Mr. Peter G. Fetros: And what we have this situation in the parole board of the state meets and determines what sentence is going to be based on his past record and they would also take into consideration the fact that he was convicted of these crimes in determining when he was -- would be eligible.

Justice Potter Stewart: On sentence on counts three and four would never end later than on one and two under this sentence?

Mr. Peter G. Fetros: That's correct.

Although, it could make a difference on whether or not one and two was extended during this indeterminate period because this is of course within the power of parole board --

Justice Potter Stewart: Well, I suppose the parole board could consider anything including the fact he was accused of other crimes?

Mr. Peter G. Fetros: That's correct.

Justice Potter Stewart: Is that correct?

Mr. Peter G. Fetros: But I think that it would have much greater bearing to know that he was actually convicted of two crimes after a jury trial and of course this is the thing that we are concerned with.

There is a third point in this that --

Justice Potter Stewart: May I ask what is the relief you're asking for?

Which convictions are you asking us to set aside?

Mr. Peter G. Fetros: Well, I'm asking to set aside three and four because --

Justice Potter Stewart: Only three and four?

Mr. Peter G. Fetros: Yes, because I don't think there was harmless.

The error was harmless --

Justice Potter Stewart: Now, what if only three and four then he remains in jail and one and two does not.

Mr. Peter G. Fetros: No, I was going to finish.

Justice Potter Stewart: Oh!

I beg your pardon.

Mr. Peter G. Fetros: My argument is that since this trial was a long protracted trial.

It was an unusual trial.

How many trials do we have or witness identifies the defense attorney as the defendant?

How many trials do we have she is being taken (Voice Overlap) in the courtroom?

These things all occurred in the trial that with the instruction that was given at the end of this trial on three and four the confusion was completely compounded and I think this tainted the convictions of one and two.

I don't think we can say with (Voice Overlap).

Justice Potter Stewart: But you're not asking us to set aside?

Mr. Peter G. Fetros: Yes, I am.

Justice Potter Stewart: Oh, you are!

Mr. Peter G. Fetros: Yes.

Justice Potter Stewart: You want all four convictions?

Mr. Peter G. Fetros: That's correct and I want things either separate when they're retried and then the clear determination made by the jury if he is guilty of one, two, three and four.

Now, there is a line of cases in the federal courts that would indicate that if the judge says when the man takes a stand, you are not waiving the privileges against self-incrimination and you can't turn it right around and say afterwards that well, the judge made a mistake so you are waiving.

This is the situation where in the Johnson case, the man took the stand and he testified as to income tax evasion counts I think in 1933, 1934, 1935, and 1936.

Then they asked him a question, now, what about 1938 which is a similar collateral crime.

This Court reversed on the basis that the man could have explained something possibly if he was forced to testify.

And so here in Perez, maybe the man could have explained something if the objection at which his defense attorney raised was not sustained.

Instead, what happen, they sustained the objection then they made the improper argument at the end concerning the inferences to be drawn.

Now, I should make it clear that this last method of finding convictions of three and four of all of the convictions are to be set aside is of course easy way out because I think that time has come for the Court to indicate how much a person waives when he takes the stand.

Does he waive it as to all cross-examination or does he waive it as to matters which are only within his knowledge?

Caminetti of course has been quoted time and time again and it's being a case that says that all available relevant cross-examination is allowed and you waive your privilege for self-incrimination to that extent.

But that really isn't what its saying.

The reason I think that the Court has focused in to the Griffin rule is that the comment and the instructions which are given focused attention to the fact that the man is silent.

It's in effect shattering the constitutional right to remain silent.

Basically, the man can't testify a lot of these things because he doesn't have in his own knowledge.

There was a companion case in Perez in the lower court level called Ing.

Now, Mr. -- Dr. Ing was charged with couple counts of rate by the use of drugs and they brought in three collateral crimes with three different people and he wasn't charged in these crimes.

He had testified those crimes and then they made the comment concerning the fact that he had testified.

But what would happen if instead of the Perez case where there was some possible explanation and knowledge on his part in this cross-examination area that the cross -- the specific question he was asked on cross-examination was, why were you so-and-so in his house with the two men immediately after the robbery which occurred in counts three and four.

If we change the facts just a little tiny bit and say that counts three and four were there and there was no such question.

Are we to say that because it is a similar crime which I'm not agreeing to but if we say that it's because it's a similar crime the man can be cross-examined as to each one of the elements of the crime.

And I don't think he can because how can he reasonably be expected to know to explain and defend themselves to these elements which are beyond his knowledge.

It isn't that really the thing that we're saying that that the quick-witted or the dull-witted should be made equal that when they're asked the question about where they were at particular time that both can say that we aren't going to answer or rather than try the quick-witted will be able to make something up and the dull-witted will not.

I think that's the real substance of the Griffin rule and if that is the case, then what I'm saying is that on each count in an indictment or complaint.

The man should be able not to say anything which is beyond his knowledge on those matters and no inference can be drawn from the fact that he remains silent.

He just doesn't know; what were you doing on November 10, 1964?

How can he defend something like that?

Maybe it is something usually peculiarly within his knowledge but I think that in this day and age everybody realizes that unless something unusual happens, he is not going to remember what happened on that particular day.

Justice Potter Stewart: But that of course if everybody realizes that then the jury can be assumed to realize that too?

That's correct.

Mr. Peter G. Fetros: Then, we get into this idea of whether the instruction focuses attention onto the fact that he didn't remain -- that he remained silent and didn't explain something.

And this is where the problem comes in just like in Griffin you're focusing attention to something that you're attempting to protect.

Justice Potter Stewart: Because he had this -- he has a lawyer and if the lawyer is representing him he can make all this.

What you're making clear to us; he can make clear to the jury.

It's a matter of just the factual realities of life.

Mr. Peter G. Fetros: Well, it's just the same factual realities of life.

When any instruction is given to the jury, they are supposed to be able to understand the instructions but how about the cases let's say when you give -- when you have A and B on trial and you have A's confession and then don't apply it to B.

Now, this Court held recently that you can't desegregate these people that closely.

In the federal system, we don't really have the problem that we have that's before us here.

Now, this is probably a unique problem or to California and maybe a few other states in the --

Justice Byron R. White: I gather in count one concerned the robbery in January 3 at the white club, count two were robbery on January 15, (Inaudible) and three and four, robbery that's still third and fourth places in January 13, is that right?

Mr. Peter G. Fetros: No, there is just one place on counts three and four.

One man was bartender and --

Justice Byron R. White: January 15

Mr. Peter G. Fetros: That's right.

Justice Byron R. White: Had he took the stand and testified on defense on the accusation of robberies on January 3rd and January 15th, is that right?

Mr. Peter G. Fetros: That's correct.

He had it now --

Justice Byron R. White: (Inaudible)

Mr. Peter G. Fetros: That's correct.

He had alibis for those episodes.

Justice Byron R. White: Well, why didn't you say that those convictions are pleaded by the count of three and four?

Mr. Peter G. Fetros: Well, I don't think we can be reasonably certain that that after the jury went in to the jury room.

They took all of this evidence and were able to piss it out.

Now, this is what I'm saying.

If we could find but I don't think we can in this case.

Justice Byron R. White: Does this touch on harmless error problem?

Mr. Peter G. Fetros: I beg your pardon.

Justice Byron R. White: From the Chapman on the harmless error?

Mr. Peter G. Fetros: Yes, on the harmless error.

Justice Byron R. White: Was there a harmless error finding here at all?

Mr. Peter G. Fetros: In the Supreme Court?

Justice Byron R. White: Yes.

Mr. Peter G. Fetros: I believe they did find it that it was harmful.

Justice Byron R. White: They what?

Mr. Peter G. Fetros: I think they did find that it was harmless.

Justice Byron R. White: My difficulty is and these are concurrent sentences.

If you already said we can't get to the convictions on one or two unless we find that this comment on as to three and four somehow infected convictions on robberies with so in different days and I take involved entirely separate facts and you suggest that the defense was alibi as those two?

Mr. Peter G. Fetros: That's correct.

What I'm saying is that I think that when this inference came in as to three and four they were attempting to segregate to three and four but they couldn't do it with the scope of the trial and the type of evidence have came in and these other matters that happened.

This witness who I say identified the defense attorney was a witness in count one or either one of two and she says, that's the man who did it and here's the defense attorney saying there.

They did take off the man's shoes in the trial, it was rather strange trial to note.

Justice Byron R. White: The defendant did testify himself to counts one and two, didn't he?

Mr. Peter G. Fetros: Yes, that alibi and then he had two, I believe he had his brother or his brother and mother or brother-in-law and his mother who testified as to where they were.

Justice Byron R. White: So, I suppose that his evidence whatever he testified to or didn't testify to it to counts one and two could've been come on his own.

Mr. Peter G. Fetros: Oh!

Yes, definitely.

And the problem there is what sort of --

Justice Byron R. White: But you're saying that comment on his failure to talk about three and four obtained in his convictions on one and two?

Mr. Peter G. Fetros: That's right.

They were narrowing in on his failure to be cross-examined on three and four.

There was no question on that.

The next case, it comes up with probably be a case where they have no comment on three and four but they try to say that he failed to explain something back in one and two.

And here again, we have the same problem because we're citing in the jury into the privilege.

Justice William J. Brennan: Well, you do agree don't you that we have to get to counts one and two before you can get any relief at all on any of these counts?

Mr. Peter G. Fetros: No, you could reverse as to three and four without reversing as to one and two.

Nice question whether it is even though a case of controversy, isn't it?

Mr. Peter G. Fetros: I'm sorry I just can't answer that.

Justice William J. Brennan: But you're familiar with the ordinary rule that we don't --

Mr. Peter G. Fetros: Yes.

Justice William J. Brennan: We'll view this rather concurrent sentence and it's conceded at least that two of the convictions must stand and we don't reach the --

Mr. Peter G. Fetros: Well, I haven't conceded them.

I'm --

Justice William J. Brennan: I know you haven't.

Mr. Peter G. Fetros: No.

Justice William J. Brennan: You said they were tainted and I'm trying to find out what exactly in what respect you say that the convictions by the jury on one and two for those separate crimes were tainted by the comment of the prosecutor on his failure to testify as to three or four and that's what I --

Mr. Peter G. Fetros: Well, because on three and four now you're also bringing in the idea that by finding him guilty of three and four if they're saying that it's a similar type of crime.

Justice William J. Brennan: Yes, but you have to say don't you that they convicted him on one and two in part because they felt that he was not to be believed in his defense on one and two if he didn't take the stand as to three and four.

Mr. Peter G. Fetros: That's correct.

Justice William J. Brennan: That's really what you're saying.

Mr. Peter G. Fetros: That's right.

We can't say how much they just count in two.

Maybe it was just right there on the border line and they just sheltered over because of these inferences.

That's what basically what I'm saying and that it would be fair to send it back for retrial in severed counts but that's what we have to do.

In the federal system when there is a joinder of counts and there is prejudice which is possible to the defendant, they sever as a matter of right if this is brought out prior to trial.

In California of course, we don't have that because they have this comment.

So, based on that, we are requesting a dismissible, we're requesting also a reversal -- we're also requesting a broad rule in respect to when a person does take the stand what does he waive his right to the all of the counts charge or his right to be collateral offenses charge or to both.

Thank you.

Chief Justice Earl Warren: Mr. Haws.

Argument of Edsel W. Haws

Mr. Edsel W. Haws: Mr. Chief Justice and members of the Court.

We have the California comment rule here again to day but under much different circumstances and presented in Griffin and in the Chapman case.

In Griffin, as you recall the defendant did not testify and it was there held that that part of the comment rule of California which permitted comment by the prosecutor and a standard instruction by the Court cut down and violated his Fifth Amendment privilege against self-incrimination.

Now, today, we have the other side of the coin as it were of our comment rule.

Our California Constitution permits comment in those situations as here where he does take the stand and fails to explain evidence -- fails to explain or deny evidence within his knowledge.

Now, it is respondent's position that the privilege does not apply and the California comment rule is valid here in this situation where he does take the stand but fails to explain or deny facts within his knowledge.

We think this conclusion follows from the proposition and the many cases that by taking the stand voluntarily as here he waives his right -- he waives his privilege against self-incrimination.

The waiver of course under the holding below is not unlimited.

The waiver in this case and in the many federal cases is cited in our brief is determined by the scope of relevant cross-examination.

The landmark case of course cited in our brief is Caminetti that has been followed in such leading cases as Johnson versus the United States which is held the waiver the privilege is not limited by the fact that the defendant's answer might tend to establish guilt of a collateral offense for which he could still be prosecuted.

Now, this to me seems important does this waiver of the privilege concept conflict in anyway with our comment rule.

In other words, to those rules hit head on and I don't think they do when we consider the history and the privilege underlying the privilege.

That was detailed precisely in the Court's Griffin case.

The Court pointed out the two main reasons policy considerations underlying the rule and the first is that not all people have the ability.

However, innocent to withstand the perils of the witness stand.

And of course in that situation, the Court noted that comment cuts down on that right.

Now, it's really apparent that that's not the situation here.

The petitioner while represented by the counsel, the public defender's office of Sacramento County voluntarily took the stand.

Now, they must have waive the possibilities of relying upon the presumption of innocence or the advantages of putting forth their versions of the fact and of course after weighing that decision was made to take the stand.

Another reason given in Griffin is that some defendants, in fact many defendants will not take the stand, not that they can explain the present charge against them but due to the fear of impeachment by prior convictions.

That reason has no validity here because the petitioner did have prior convictions; they were alleged in the accusatory pleading.

Justice Byron R. White: May I ask you Mr. Haws?

Mr. Edsel W. Haws: Yes, sir.

Justice Byron R. White: I don't find in your brief that you make any argument based on concurrence?

Mr. Edsel W. Haws: No sir, I don't.

Justice Byron R. White: Don't you think there are any -- do you have any replacements?

Mr. Edsel W. Haws: Well, Your Honor I thought about that -- I gave that considerable thought and of course we would take that argument if we had to but we thought that this case was so clear that there might be some --

Mr. Edsel W. Haws: Well, as I say that to your statement is entirely in my favor and it would perhaps I have to take that but we had considered briefing but we didn't --

Justice Byron R. White: Here was just decided constitutional question, you migth use that of rule, do you?

Mr. Edsel W. Haws: Well, Your Honor that --

Justice Byron R. White: Do you think in that?

Mr. Edsel W. Haws: Yes, that was waived but on the fear of not taking the stand because of prior convictions that has no validity here because two prior convictions were charged against this petitioner.

He admitted them and one was used for impeachment when he did take the stand.

So, that fear could not have the third -- the defendant from taking the stand.

Now, California in this case and in the companion case of People versus Ing on the waiver principle followed the rule that has been followed in the federal courts.

That is that the waiver extends to permissible or relevant cross-examination.

And the court below reason in this case as it did in the companion case of Ing that counts three and four showed a plan, scheme in modus operandi and in view of the general denial as to counts one and two and when you have a general denial cross-examination is extremely wide and goes to his motive, his scheme, his plan that those counts three and four were within the scope of permissible cross-examination.

Now, we counsel mentioned that the error of the trial court in over in sustaining the objection to cross-examination and it seems to conclude that some prejudice resulted to the petitioner by that ruling, we contend that that error of the trial court was an error in favor of the defendant.

The Johnson case of course points out that where the privilege is claimed when a witness takes his stand if the privilege is claimed.

And then, and granted as in the Johnson case and then there is comment; of course that's not playing the game quite fairly and there would be prejudice but that was certainly not the situation here.

Justice Byron R. White: Well, what would happen if there was an objection to the cross-examination about counts three and four?

Mr. Edsel W. Haws: That is right.

Justice Byron R. White: And the objection that was sustained?

Mr. Edsel W. Haws: That is right.

Justice Byron R. White: And so, there was no testimony about three and four for him?

Mr. Edsel W. Haws: That is true, Your Honor.

Justice Byron R. White: But there was comment?

Mr. Edsel W. Haws: That is right.

Justice Byron R. White: And then the California Supreme Court said, “No, the law in California that there was no privilege as to counts three and four.”

Mr. Edsel W. Haws: That is right.

Justice Byron R. White: And so, he should've testified?

Mr. Edsel W. Haws: Should've been allowed to be cross-examined.

Justice Byron R. White: And should've been force to testify?

Mr. Edsel W. Haws: I don't think they said that Your Honor.

Justice Byron R. White: Well, what if he has no privilege and he's asked the question on cross-examination and on privilege question and he refuses to answer, what happens?

Mr. Edsel W. Haws: Well, of course I would -- the general -- I understand --

Justice Byron R. White: You didn't instruct him to answer, don't you?

Mr. Edsel W. Haws: That's right.

That point Your Honor --

Justice Byron R. White: Well, what do you think the defendant would've done if he had found out and he had mistakenly claimed his privilege and it has been mistakenly upheld, do you think he'd rather had comment or would he rather testify?

Mr. Edsel W. Haws: Well, I don't know Your Honor.

But here, there was no claim of privilege.

Justice Byron R. White: There wasn't?

Mr. Edsel W. Haws: No, he --

Justice Byron R. White: Well, what was the objection based on?

Mr. Edsel W. Haws: Beyond the scope of direct examination.

Justice Byron R. White: I see.

Mr. Edsel W. Haws: So, you see there and you don't --

Justice Byron R. White: I know but he's claiming that privilege.

He's claiming the privilege now.

Mr. Edsel W. Haws: Well, now but you see the prejudice would have to relate to the factual situation Your Honor occurring then as in Johnson the witness or I think it was the defendant did claim a privilege which the trial judge granted.

Justice Byron R. White: All right, do you think the Supreme Court of California also said that this was unprivileged?

Mr. Edsel W. Haws: They didn't discuss that.

Justice Byron R. White: They said, this isn't beyond the scope of cross-examination.

Mr. Edsel W. Haws: That's right and since it is --

Justice Byron R. White: Do you think they also rule that was unprivileged?

Mr. Edsel W. Haws: Well, I think that that would follow.

Justice Byron R. White: Didn't they have to?

They had to in order to permit the comment?

Mr. Edsel W. Haws: I think it would follow that if it's within the scope the privilege is waived therefore, he should've answered it.

But here, under the factual situation I would say that the error of the trial court benefited the defendant because he did not have to attempt to explain what happened to the --

Justice William J. Brennan: Mr. Haws, are you familiar with this Court's decision in Raley versus Ohio?

Mr. Edsel W. Haws: I don't recall on that.

Justice William J. Brennan: A situation and which the witness was told that he could avail himself of the privilege and he did and then he was prosecuted for contempt in the Supreme Court of Ohio so he should've been told that he could avail himself to the privilege because it was an immunity statute.

Therefore, he had to testify and this Court held that the states can't do that with witnesses like plain denial of due process.

Now, how do you distinguish this here as I understand it what happened was -- it was an objection and it was sustained on the ground that it was not relevant cross-examination and then the Supreme Court says, “Oh, yes!

The trial judge applied the wrong rule of law” but that's what this petitioner acted on, wasn't it?

Mr. Edsel W. Haws: Well, Your Honor his direct examination was in on counts one and two.

Certainly, he had made no claim privilege and he was --

Justice William J. Brennan: Well, he couldn't obviously.

Mr. Edsel W. Haws: That's right.

Then, when he was asked a question as to counts three and four the objection was on not that you're going in --

Justice William J. Brennan: So, the point here is that the objection was made whatever the ground of the objection was.

Mr. Edsel W. Haws: The objection was made not that you're requiring him to incriminate himself on a matter not charged but you're going into matters --

Justice William J. Brennan: Beyond the direct testimony?

Mr. Edsel W. Haws: That's right.

Justice Byron R. White: But unless you utilize the concurring sentence rule Mr. Justice Brennan was asking you about it.

It seems to me that Raley against Ohio and Murphy against Waterfront and cases like that really are very relevant.

Mr. Edsel W. Haws: Well, --

Justice Byron R. White: Because I'm not so sure of what -- did not know that he was suppose to testify that he would rather testify than have to comment.

I'm looking at page 11 of the appendix where there appears what purports to be an opinion of the District Court of Appeals the Fifth Appellate District which, if you must go on page 22 includes by saying the judgment is affirmed as to count one and two of the information and reversed as to counts three and four.

And there then follows beginning on page 23 what appears to be the opinion of the Supreme Court of the State of California which ends up on page 29.

The judgment is affirmed and does that mean that the judgment of the District Court of Appeal affirming as to counts one and two reversing as to counts three and four is affirmed.

Mr. Edsel W. Haws: So, as the case stands before the Court today, all counts of the conviction have been affirmed.

Justice Byron R. White: So, that instead of the judgment is affirmed which submits judgment of the conviction at all four counts charged?

Mr. Edsel W. Haws: That would've been a full explanation, yes Your Honor.

Now, to just on that one point I noticed that in the dissenting opinion by Justice Peters he and the concurring he would've agreed with the Fifth District Court of Appeals.

Now, counsel has made some mention about some prejudice because of California's joinder provisions and just generally the joinder provisions provides that offenses connected together in their commission or offenses of the same class such as here robbery against the single defendant maybe joined.

And of course that was done in this case and there are some implications in petitioner's brief that this provision somehow cuts down on the privilege and I don't think the factual situation here --

Justice Potter Stewart: Do I need a Gettysburg's opinion directly in reading it to say in effect that all of the evidence on counts three and four as a matter of California law were admissible on the charges under counts one and two as part of the modus operandi?

Mr. Edsel W. Haws: That is correct.

Justice Potter Stewart: So that it was all -- if they've never been at counts three and four, isn't never been that evidence nevertheless would've been admissible in the trial on counts one and two.

Mr. Edsel W. Haws: That is true Your Honor --

Justice Potter Stewart: And that's what he said and that's (Voice Overlap).

Justice Byron R. White: And the same comment would've been justified if he didn't --

Mr. Edsel W. Haws: That is true.

That's my point on the severance would not have injury of the defendant here and what I mean by that is this, just the example if you tried him first on count one, evidence of the other three counts would've come in as collateral offenses to prove plan scheme and so forth.

If he took the stand this to count one, then it would've been the permissible of scope a cross-examination his privilege would've been waived and that and even carrying further on the second trial assuming for trial -- on the second trial.

Then I would assume that if his answer on cross-examination had been incriminating that could've been used against him in the second trial as a judicial admission.

So and one more point on the joinder provision and in cutting down on the privilege.

You see this -- it's not unlimited for example if this man had been charged with a robbery that had no evidentiary connection with another robbery.

Obviously, it would've been beyond the scope of cross-examination.

There could've been no cross-examination and of course no comment by the prosecutor the privilege would've applied.

Justice Potter Stewart: Because there would have been no waiver with respect?

Mr. Edsel W. Haws: That is right Your Honor.

So, it's --

Justice Abe Fortas: Well, I suppose that here in your theory that there was a waiver as to counts three and four where prosecutor could've said, “All right, I'll now examine him as I examine the petitioner as my own witness.”

Mr. Edsel W. Haws: He couldn't -- you can't do that Your Honor under --

Justice Abe Fortas: Why?

Mr. Edsel W. Haws: Well, I can't think of the California cases but that has been attempted in California and of course that violation --

Justice Abe Fortas: Well, I see in your theory is that as I understand it that there was a waiver of the privilege against self-incrimination as to counts three and four as well as to counts one and two, is that right?

Mr. Edsel W. Haws: That's right, Your Honor.

Justice Abe Fortas: Well, the Court excluded cross-examination as to counts three and four on the evidentiary basis that that cross-examination would be beyond the scope of the direct, that's right isn't it?

Mr. Edsel W. Haws: That is true.

That is correct.

Justice Abe Fortas: Now, does it follow that the prosecutor -- the privilege having been waived could have made the petitioner his own witness and proceeded to examine him with respect to counts three and four?

Mr. Edsel W. Haws: I don't think that would follow Justice Fortas.

Justice Abe Fortas: And I don't understand because it seems to me that's necessary logic of your position, it's a necessary consequence of saying that testimony as to counts one and two resulted in a waiver of the privilege as to counts three and four.

Mr. Edsel W. Haws: I don't think so Your Honor because of this; his examination of this defendant of course is within the bounds of the relevant cross-examination.

Justice Abe Fortas: Of the relevant direct examination.

Mr. Edsel W. Haws: Excuse me, direct examination.

Justice Abe Fortas: But why, why couldn't he -- if the privilege is waive, why couldn't he call petitioner as his own witness, why couldn't the prosecutor call petitioner as his own witness, does it call John Jones on your theory that the privilege was waived?

Mr. Edsel W. Haws: Well, I think that calling as his own witness with no doubt open up a broader field than what he had to work with and what he could work with under relevant cross-examination.

Justice Abe Fortas: Well, then don't you have to say that privilege was not waived as to counts three and four?

So if the privilege was waived as to counts three and four, the prosecutor presumably could put petitioner on the stand, petitioner being by hypothesis in possession of relevant information.

And he could then examine it on direct as his own witness as the state's own witness privileges were waived.

Mr. Edsel W. Haws: Well, I would say that the waiver extended to counts three and four because that would be permissible cross-examination and he can do that because the privilege is waived.

Now, I -- the procedure, I can't carry it on to where he would have a situation.

I think it would have the situation where the prosecutor would then be calling the defendant on the stand that I just thought --

Justice Abe Fortas: That's right and if the privilege has been waived why can't he?

Mr. Edsel W. Haws: That privilege has been waived but it occurs to me other things might come into involvement there in it.

It seems to be some what perhaps too coercive for a prosecutor to call the defendant.

Mr. Edsel W. Haws: Well, that's not my judgment that was the judgment of the California Supreme Court on this --

Justice Abe Fortas: But the problem here is whether offhand it seems that the trial court took position and maybe somewhat inconsistent if or let me put it this way; that if the prosecutor had said, “Privilege has now been waived, defendant testified as to counts one and two.

Privilege has been waived as to counts three and four.

I will now make the defendant my own witness and I will direct some questions to him.”

I failed unless you -- some rule in California which I'm unaware, I don't why that isn't the necessary logical result of a waiver of the privilege if you're right that the privilege was waived as to counts three and four?

Mr. Edsel W. Haws: Well, all I could to answer your question, all I could say that the privilege extends to counts three and four under the theory that that is proper cross-examination.

Now, I suppose it logically if everything else were excluded you would have no a different situation if you wanted to call that cross-examination direct examination.

Justice Abe Fortas: No, but the court didn't allow to examine as to counts three and four to cross-examine as to counts three and four --

Mr. Edsel W. Haws: That's true.

Justice Abe Fortas: That was outside of the scope of the direct.

Mr. Edsel W. Haws: And of course that was -- our California Supreme Court said that was error.

He should've allowed that cross-examination.

Justice Abe Fortas: On the grounds that there was a waiver of the privilege?

Mr. Edsel W. Haws: No, there's a waiver of the privilege Your Honor because it's within the scope of cross-examination.

It was proper cross-examination because it showed his plan.

A general denial you see brings in the collateral matters.

Justice Abe Fortas: Yes and I see what you mean but I still I suggest to you that if it is your contention that the privilege was waived, that would open up the defendant to being called as -- by the state if the state want to do it and examine it with respect to the entire scope of counts three and four.

Mr. Edsel W. Haws: Your Honor I would think that if logically if you can insulate it to this cross-examination waiver problem, it will logically follow perhaps but as I mentioned so many other aspects of calling the defendant would --

Justice Abe Fortas: I understand that but I mean to say we have to look at this thing as a matter of principle, not to look at the parameter of the problem as well as its immediate focus and I suggest to you that what you're telling us is that may result in the logical conclusion that if a defendant take stand as to any counts as a waiver as to all counts and the net result of that is that the prosecutor if he sees fit, and examine the witness as his -- and examine the defendant as his own witness with respect to those other counts.

Mr. Edsel W. Haws: Your Honor, that has not been the history of the situation in the federal practice.

This principle of waiver as to the extent of permissible cross-examination Caminetti, I think was decided in 1917 and no one is contended that under the Caminetti principles are I know of no federal prosecutor thus contended that by virtue of his waiver he can then put them on the stand.

One final word, assuming a Griffin error I would ask you to consider that this is a situation where Chapman could apply.

The comment here was not extensive as in Chapman; considered in the light of the situation that he did take the stand and the jury could draw their own conclusions without a situation in Griffin without being aided by the prosecutor in the Court.

I think it points to the conclusion that the error of any was harmless beyond to reasonable doubt and we would submit that California decision should be affirmed.

Chief Justice Earl Warren: May I ask you Mr. Haws, supposing the Court had not found that these were similar offenses and therefore that he could be cross-examined on that scope but have put it on the grounds of pure waiver, could this be sustained?

Mr. Edsel W. Haws: Well, some of the earlier federal cases seem to indicate that the waiver of the privilege was not bounded by the scope of cross-examination.

Caminetti indicates that some of the later cases in the federal courts Johnson and the Brown case and so forth would indicate that it is tightened that the waiver the privilege extends only to the scope of relevant cross-examination.

If those cases were followed then of course and it was not connected crime then, Griffin would be violated.

Chief Justice Earl Warren: So, they had a broader scope of cross-examination for a defendant than for a witness -- ordinary witness?

Mr. Edsel W. Haws: I would say that it would be perhaps broader for the ordinary witness because since he is not charged.

Chief Justice Earl Warren: And suppose the witness -- suppose then a witness in this trial had testified as to count one only but you have cross-examined him as to two, three and four?

Mr. Edsel W. Haws: An uncharged witness?

Chief Justice Earl Warren: Yes.

Mr. Edsel W. Haws: No, no Your Honor, I don't think so.

Chief Justice Earl Warren: Well, that I would be -- there is a difference scope then according to our theory as between the witness and a defendant.

Mr. Edsel W. Haws: Well, that is true.

Chief Justice Earl Warren: And it's broader for the defendant?

Mr. Edsel W. Haws: Well, what I meant was that the non-charged witness his privilege or he can be questioned about many things in a much broader area because he is not charged and I think that the privileges would work differently between the non-charged witness and the charged witness that in your -- if I made myself clear.

My time is up Your Honor.

Chief Justice Earl Warren: But I don't see how that follows if you say that if he testifies concerning one count, he cannot be cross-examined as to the other counts.

Mr. Edsel W. Haws: Your Honor, I think it's the theory; the non-charged witness is not being -- you're not proving anything against him but as with the defendant here, you're proving a defense against him and when he makes a general denial he has an effect denied the collateral offense of count three and four.

Chief Justice Earl Warren: He didn't make a general denial on the witness stand as two, three and four?

Mr. Edsel W. Haws: No.

Chief Justice Earl Warren: Just one and two?

Mr. Edsel W. Haws: That is true but because of that general denial under the rules of evidence, he makes a general denial also of counts three and four and therefore, within the scope of cross-examination.

Chief Justice Earl Warren: Then you would say that even if three and four were not similar offenses under the similar offense rule in California that they could still cross-examine him if he testified concerning one and two?

Mr. Edsel W. Haws: No, I'm sorry Your Honor.

I mean that California Court didn't hold that and as my illustration was if he had no evidentiary connection between a robbery you couldn't cross-examine in order he would not have waived his privilege, that's the holding below.

Chief Justice Earl Warren: Can you tell us in just a moment what to make these similar offenses?

Mr. Edsel W. Haws: Well, --

Chief Justice Earl Warren: Counsel -- the counsel said that in his opinion they were not that's the only reason I asked you.

Mr. Edsel W. Haws: Well, I have a chart here and just running across they were similar because of clothing, because at all counts they searched other areas looking for other things such as the radio in count two, credit cards in count one, and in counts three and four they also search to other areas they were in all of the offenses; they were some type or use some type of mask but I think most significant of all is that you had the admitted robber David Perez unrelated to this provision.

You had him as a confessed robber in count two and counts three and four and the evidence showed that he and that was used in the Haston case as a significant similar mark where the admitted robber is present at the uncharged and charged crime as showing plan scheme.

Thank you.

Chief Justice Earl Warren: Mr. Fetros, did you have some time left?

I think, yes you have some time left.

Rebuttal of Peter G. Fetros

Mr. Peter G. Fetros: I just want to make one very brief comment and that's the use of the term “cross-examination” by the California Supreme Court.

It's not being used I don't think in the same sense that we're thinking of it.

There's direct examination and then there's cross it's on the direct but they're saying is that there's a further area which makes the defendant the prosecutor's witness and this is the whole area that this thing opens up if we allow this type of theory to stand then in effect on a charged crime the District Attorney can ask any question he wants concerning a charged crime which is similar in modus operandi.

He can say, “Where were you, what were you doing?”

you know, “How can you explain this?”

Go through the whole thing as if he is in the civil case he was calling the guys an adverse witness.

The Supreme Court of California used the term “cross-examination” is proper but it's a little bit different that we normally think of.

The man is on the stand at that time and you're asking him these questions that in effect they're making him -- the District Attorney is making him as his witness to prove elements of the crime.

And if this thing is allowed to stand, they're saying that the District Attorney can elicit from the defendant as to counts three and four all of the necessary elements by asking questions which they say are cross-examination which I say is really just direct examination.

They don't have any relationship to the questions which were asked on -- by the defense attorney at all.